INTRODUCTION The term Alternative Dispute Resolution (ADR) has two meanings: loosely, the acronym ADR includes further then so-called so-called “amicable” methods of resolving disputes – the the negotiation, the conciliation, the mediation, whatever their nature judicial or extrajudicial, namely those methods which offer the parties the possibility to participate in the research of an accepted solution of their dispute – dispute – other other methods which, that even if they have not an amicable nature, they are alternative means of dispute resolution.
Definition
ADR may be described as a structured negation process during which the parties in dispute are assisted by one or more third person(s), the “Neutral”, and that is focused on enabling the parties to reach a result whereby they can put an end to their differences on a voluntary basis.
All ADR-processes are characterized by the involvement of one or several third person(s), the Neutral. The main task of the Neutral in most ADR processes is to assist the parties in gradually refocusing from what has happened in the past (and cannot be undone) to reshaping their future by seeking creative solutions which reflect their business interests. The involvement of the Neutral is a key ingredient of ADR; it is he/she who is expected to adduce the added value that can be expected from ADR. The phrase alternative dispute resolution or ADR encompasses a range of procedures other than litigation which are designed to resolve conflicts. ADR processes include negotiation, mediation, conciliation, expert determination, adjudication, and arbitration.1 In the last few decades the use of ADR has become more prevalent within both international and domestic commercial contracts. The reason for this is that the costs of litigation have become prohibitive and the parties to a dispute and their advisers are now considering alternative methods to resolve disputes which are cheaper, quicker and will not lead to a break down in the working relationships of the parties. Basic Principle Behind ADR
ADR is based on the system of „adjustment‟. Life is adjustment or adjustment itself is life. Essence of ADR System
The essence of ADR is to resolve conflicts, differences or disputes that exist between the parties. ADR processes seek to resolve these differences in two ways :Where the ADR process provides the parties with a decision then the process is about establishing rights and obligations. Where the process is facilitative then its purpose is about the acknowledgement and appreciation of differences. The aim for the parties must be to establish the correct process in order to resolve the dispute.
Benefits of ADR process
ADR serves as one of the outlets as dispute solving mechanism, thus reducing the burden of judiciary.
Cost of litigation is too much as compared to ADR
ADR process is much quicker then litigation
ADR does not lead to breakdown in the working relationships of the parties.
Importance of ADR State of Jammu & Kashmir Vs. Devdutt Pandit
Justice Wadhwa – Arbitration is considered to be an important ADR process which is to be encouraged because of high pendency of cases in courts and the cost of litigation. Arbitration has to be looked up with all earnestness so that litigant public has faith in speedy disposal of cases through this process. Forms of ADR
The attempt to dress an exhaustive list of different types of ADR it is an aim impossible to reach. The reasons for this weakness are:
there are no legal rules and there are no universal definitions in this area;
these techniques are very flexible; ADR lends itself to numerous derivatives consisting of combinations of common types;
there are different practices.
Despite these inconveniences it has been detected various forms of alternative dispute resolution starting with negotiation perceived as the foundation skill for successful implementation of many ADR processes and reaching to arbitration, the less consensual technique.
NEGOTIATION
Consensual bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter. Negotiation differs from other methods of dispute resolution in degree of autonomy experienced by the disputing parties. Parties are free from intervention of third parties such as judges, arbitrators or mediators. Parties also have the power to decide process norms in negotiation. It encourages settlement of disputes outside court and also provides the machinery. MEDIATION
Structural negotiation in which a neutral third party the „mediator‟ uses a number of rrecognized techniques to assist the parties to the dispute to frame the own agreement in order to resolve the dispute. Mediation is helpful in cases such as personal relation like – family matters, divorce, alienation, guardianship, partition i.e. some strained relation. Also useful in tortuous liability – Motor accidents, consumer cases i.e. involvement of contract or commercial matters. In business disputes, where reputation of businessman is involved, thus he try to avoid going to court as it can hamper his name, so ADR provides adequate means to solve such problems. The aim behind the mediation process is that it should be quick, inexpensive and confidential. The parties are not simply limited to looking at their own legal entitlements; they are encouraged to think outside of the problem. For instance, where parties may work together on future projects some concessions can be made regarding the present dispute and discounts can be agreed for future projects. This is useful where the relationship between the parties has not broken down irretrievably.
Mediation as a condition precedent to arbitration
It is now very common to find that major international commercial contracts require the parties to attempt mediation before they become entitled to commence any other dispute resolution process.
Cable & Wireless plc Vs. IBM United Kingdom Ltd
A dispute arose and court proceedings were commenced. Cable and Wireless made an application to stay the court proceedings pending a referral to ADR in accordance with the ADR clause in the contract. IBM claimed that the ADR clause lacked certainty and was nothing more than an agreement to negotiate and was therefore unenforceable. The court granted the application and rejected this argument. The Court held that in deciding whether such clauses were enforceable, an important consideration would be whether or not the obligation to mediate was expressed in unqualified and mandatory terms.
Poiré Vs. Tripier
The French Cour de cassation has held that a conciliation clause, which had been agreed to by the parties, prevented any legal proceedings being commenced prior to the completion of the conciliatory process.
CONCILLIATION
Conciliation is an informal process, similar to mediation but less structured than the mediation process. In conciliation, a neutral third party intervenes in a conflict in order to assist parties in arriving at a resolution. The neutral third party engages in a variety of techniques to reduce tensions between the parties, improve communications, and understand and interpret issues and positions. The UNCITRAL Model Law on International Commercial Conciliation4 defines conciliation as “a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute”.
Conciliation is similar to that of mediation and the terms are used interchangeably sometime. Slight difference between Mediation and Conciliation
Conciliation imposes formulation of opinion and delivery of ve rdict. Role of conciliator is to clarify the issues between parties so that they can reach at an amicable settlement. rd
It has got statutory recognition under Arbitration & Conciliation Act 1996 and part III of the Act deals with Conciliation.
ARBITRATION
Arbitration is generally defined as a dispute resolution process in which disputants present evidence to a neutral third party who renders a binding decision. It is a Quasi-Judicial proceeding. Parties appoint a person known as „Arbitrator‟, it may be voluntary or statutory or non statutory. The Arbitrator conducts the proceedings in a judicial manner but he is not bound by the technical and complex procedure of CPC and Evidence Act. LOK ADALATS
Lok Adalats are not court of laws in strict sense or by accepted norms. Lok Adalats are generally organized by State Legal Aid Committee, Advisory Boards and Distict Legal Aid Co mmittee. These are generally organized in weekends or holidays and wide publicity is made before such date of organization. Its members are generally retired judges, eminent persons, lawyers, social workers and they are termed as „conciliators‟. Disputes are resolved by conciliatory and persuasive manner. The job of conciliator is to persuade parties to reach at amicable settlement, when they reach such conclusion a settlement agreement is framed signed by both the parties and then the Lok Adalat passes an award. It is similar to a degree of Civil court, but no party can go against the award passed by the Lok Adalat i.e. once such award is passed it cannot be challenged again. Although proceeding are carried on in a judicial manner but Lok Adalats have the power to determine its own procedure and to avoid complexities.
